Rohit v. State

(iii) Address 3586 FAIZ BZR NEW DELHI DELHI

Alternative Contact Name Alternative Contact No Complaint Type Stabbing Priority HIGH Incident Address G BLOCK HNO-1670 JAHANGIR PURI Incident Information CALLER KE BHAI KO CHAKU MAR DIYA HAI PS Name JAHANGIR PURI District NORTH WEST 2 Shift Shift B (PART II) Transmitted to VAN by HC/SATENDER/1183/C72798 Total Queue of Unattended calls at the lane call arrived at Dispatcher H 0 M 0 L I MPV Selected Times Message Transmitte d to MPV At (Time) MPV reaching time at the spot MPV Report Time MPV Free Time 05-Apr CMD-56 05-Apr2014 05-Apr 05-Apr 05-Apr- TGR 53A 05-Apr2014 New Situation Found Time Stamp New Situation Found Now Priority Report Received from MPV: 05/04/2011 11:00:00 INJ.

PAHALE HI BJRM HOSP.

JA CHUKA HAI. WAIT DETAIL.

JANKARO KA JHAGDA HAI. 05/04/2014 11:32:18 BJRM HOSP. MAI INJ.

MOHAN LAL S/O. KANYA LAL AGE 25 YRS. R/O. G-1686 JHANGIR PURI KO DOCTOR NE BROUGHT DEAD DECLARE KIYA HAI.

DOCTOR NE BATAYA MOHAN LAL KO LEFT THAI PAR AUR RIGHT HAND KE THUMB PAR U/I NUKILI CHEEJ SE CHOT HAI.

CHAKU NAHI LAGA HAI.

MOKA PAR ABOUT 50 KI GATHRING HAI.

COMMAND ROOM INF. 05/04/2014 11:34:32 HOSP.

MAI ASI NARESH LP SE WITH STAFF AA GAYA HAI.

SITUATION NORMAL HAI. HOSP.

MAI SIMRAN MILI HAI JISNE BATAYA MAI MOHAN LAL KI MAAMI HUN.

MOHAN LAL KE SAATH ROHIT AUR ANNU JHAGDA KARKE BHAG GAYE THE.

HUM MOHAN LAL KO HOSP.

LE KAR AAYE THEY. 05/04/2014 11:54:52 SITUATION NORMAL HAI. Challan Close Time: 05-Apr 2014 11:55:09 (PART III) (PART IV-A) (PART IV-B) CATS: Informed CATS Time 05-Apr 2014 10:47:23 Call Sign ALFA-1 Location Info A==10 INFORMED Informed by HC JAI KARAN SINGH (28881794)

SMS SMS From NORTH WEST 2 SMS toCMD 02A Time Stamp 05-Apr 2014 10:46:50 SMS By HC SATBIR SMS 9971729206 G BLOCK HNO-1670 JAHANGIR PURI – CALLER KE BHAI KO CHAKU MAR DIYA HAI SMS From NORTH WEST 2 SMS toCMD 02A Time Stamp 05-Apr 2014 11:36:40 SMS BJRM HOSP.

MAI MOHAN LAL S/O KANYA LAL AGE 25 YRS. R/O. 1696 JAHANGIR PURI KO DOC NE BROUGHT DEAD DECLARE KIYA HAI DOCTOR NE BATAYA MOHAN LAL KO LEFT THAI PAR AUR RIGHT HAND KE THUMB PAR U/K NUKILI CHEEJ SE CHOT HAI CHAKU NAHI LAGA HAI.

MOKA PAR ABOUT 50 KI GATHRING HAI.

COMMAND ROOM INF. 05/04/2014 11:34:32 HOSP.

MAI ASI NARESH I.P. SE WITH STAFF AA GAYA HAI.

SITUATION NORMAL HAI. (PART V-A) Address Resolution Group (PART V-B) Comment Time 05-Apr 2014 11:58:34 Supervisor Comment Signature of Inspector: PA100(28822713)‖

B. PCR Form 2 “DELHI POLICE CONTROL ROOM FORM I Cell Received and Transmitted by WCT/GAYATARI DEVI /3692/PCR/28040005

1. Date

CPCRDD No

2. Informant (i) Name SEEMA (Female) (ii) Phone No 9899811549

(iii) Address 1687 G BLK, JAHANGIR PURI Delhi

Alternative Contact Name Alternative Contact No Complaint Type QUARREL Priority HIGH Incident Address H.NO.-G 1686 JAHANGIR PURI DHOBI GHAT WALI GALI Incident Information LADY KAH RAHI H KI BHAI JHAGRA KAR RHA H PS Name JAHANGIR PURI District NORTH WEST 2 Shift Shift B (PART II) Transmitted to VAN by HC/SATENDER/1183/C72798 Total Queue of Unattended calls at the lane call arrived at Dispatcher H 0 M 0 L 0 MPV Selected Times Message Transmitte d to MPV At (Time) MPV reaching time at the spot MPV Report Time MPV Free Time 05-Apr CMD-56 05-Apr2014 New Situation Found Time Stamp New Situation Found Now Priority Report Received from MPV: DCR=12=== 05/04/2014 11:43:38 SAME CHALLAN NO. 1080095 Challan Close Time: 05-Apr 2014 11:43:42 (PART III) (PART IV-A) (PART IV-B) HELPLINE: Local Police Time Stamp 05-Apr 2014 11:50:12 Local Police DCR 22 Local Police Informed ____ Location Police Informed Officer WSI Local Police DCR==21== 05/04/2014 11:00:06 INJ.

PAHALE HI BJRM HOSP.

JA CHUKA HAI.

WAIT DETAIL JANKARO KA JHAGDA HAI T96 Time Stamp 05-Apr 2014 11:50:12 T96 DD No.______ T96 informed __ T96 Informed Officer ___________________ T96 informed _____ Informed by SHASHI GUPTA (28890006)

SMS SMS From NORTH WEST 2 SMS toCHD 02A Time Stamp 05-Apr 2014 10:52:03 SMS 9899811549 H NO G-1686 JAHANGIR PURI DHOBI GHAT WALI GALI- LADY KAH RAHI HAI BHAI JHAGRA KAR RHA H (PART V-A) Address Resolution Group (PART V-B) Comment Time 05-Apr 2014 11:55:56 Supervisor Comment Signature of Inspector: PA100(28822713)‖

4. According to learned counsel for appellant-convicts Shiv Kumar @ Shibu and Rohit, there was a serious lapse in the investigation as the prosecution had not bothered to interrogate the callers and none of the informants had been made witnesses.

5. Learned counsel for the appellant-convicts Shiv Kumar @ Shibu and Rohit points out that as per the list of seizure of miscellaneous exhibits, some red coloured pieces of broken bangles were recovered from the site of incident and were sealed. He states that the police did not investigate this fact, despite one of the PCR callers, namely, Seema stating that her brother was fighting. He contends that the investigating authority neither pondered upon the possibility of the involvement of any lady/ladies in the entire incident (which could have provided a plausible explanation with regard to the presence of broken bangles at the crime scene) nor was there any effort made on the part of the prosecution to examine Seema.

6. He further contends that the theory of stab injury on the chest had been introduced by the post-mortem report (Ex.PW-24/A) (wherein it had been stated that the cause of death was due to injury on the left side of the chest of the deceased Mohan), whereas the MLC (Ex.PW-3/B) of the deceased does not mention any chest injury. He emphasises that MLC of the deceased-Mohan mentions that an ECG had been conducted. Therefore, according to him, it was improbable for any doctor not to mention a chest injury in the MLC. The MLC of deceased Mohan is reproduced hereinbelow:- ―BABU JAGJIVAN RAM MEMORIAL HOSPITAL, DELHI-110033 MLC REGISTER No. Name Mohan Father‘s /Husband Name Kanhaiya Lal Age 22 yrs Sex M Religion ___ Occupation __ Residence G-1686, Jahangirpuri Delhi Name of relative of friend B/b Bharat (Mama) 997172........ Date of examination ____ Date and hour of arrival 05/04/14 11: 15 am No. and date of police docket 19A No. and name of Constable SI Ved Prakash, PS Jahangirpuri In Admitted{Date of admission __ Date of Discharge __ Date and hour of report sent to police Thumb Impression PARTCIULARS OF INJURIES OR SYMPTOMS, IN CASE OF POISONING B/B Bharat (Mama) for Medical Examination A/H/O Physical assault O/E – Patient is in deep commatose unresponsive state LH (1) stab injury at left lower thigh laterality (2 cm x 1.[5] cm) (2) C/w on pt. Thumb (1 cm x 0.[5] cm) (3) C/w on bare Rt. Index Finger (1 x 9.[5] cm) Chest – No respiratory effect - Breath sound absent - B/L __ entry absent - Pulse not palpable - EA not recordable - Heart sound absent CNS - B/L plantar mute, B/L DTR Pupil B/L dilated and fixed ECG – Straight line at 11.15 AM on 5/04/14. Hence on above mentioned finding and after thorough clinical examination, pt. was declared brought dead. Dead body handed over to I/O for further _ to mortuary. Space for particulars as to further reference to the casedate of giving evidence in the Court or despatch of articles said to contain poison Name of injuries Sd/- Bharat 05/04/14 The kind of weapon used or poison suspected in case of poisoning (Simple, Grievous or Dangerous) Identification Remarks 1) Tatoo mark on Rt.

2) Forearm (M.A.) Examining Medical Officer‖

7. He also laid emphasis on the fact that the weapon of offence had not been recovered in the present case. He states that it is not clear as to what weapon was used in the offence. He points out that there are three different versions regarding the weapon of offence, namely:i) As per Rakesh Kumar (PW-7), the weapon of offence was a Sua (Ice pick). ii) As per DD No. 19-A, the weapon of offence was a knife. iii) As per the post-mortem report prepared by Dr. Bhim Singh (PW-24), the weapon of offence was a screwdriver or a like object.

8. Learned counsel for the appellant-convicts Shiv Kumar @ Shibu and Rohit contends that the two alleged eyewitnesses of the present case, namely, Rakesh Kumar (PW-7) and Bharat Kumar (PW-16) are interested witnesses since both of them are the relatives of the deceased i.e. maternal uncles and have a personal enmity with the appellant-convicts as the sister of the deceased Mohan had married appellant-convict Rohit against the wishes of her family.

9. He states that the presence of Bharat Kumar (PW-16) at the scene of crime is highly doubtful since he was residing far away from the scene of crime and it is height of coincidence that he had witnessed the entire incident of murder by chance.

10. He further states that Rakesh Kumar (PW-7) is a planted witness, whose testimony does not inspire any confidence as his MLC belies his presence in the hospital at the time of admission of the deceased Mohan. He states that though as per the testimony of Rakesh Kumar (PW-7) he was being treated simultaneously with deceased Mohan at Babu Jagjivan Ram Memorial Hospital (hereinafter referred to as “BJRM Hospital”) as mentioned in MLC, yet Rakesh Kumar‟s arrival time at the hospital is 12:35 p.m. in contradistinction to deceased Mohan‟s arrival time of 11:15 a.m. He points out that Rakesh Kumar (PW-7) and Bharat Kumar (PW-

16) had not mentioned the name of the assailant to the doctor at the hospital. In support of his contention, he refers to the MLC (Ex.PW-3/A) of Rakesh Kumar (PW[7]), which is reproduced hereinbelow:- ―BABU JAGJIVAN RAM MEMORIAL HOSPITAL, DELHI-110033 MLC REGISTER No. ____ Name Rakesh Father‘s /Husband Name Gulab Chand Age 32 yrs Sex M Religion ___ Occupation __ Residence G-1670, Jahangirpuri Delhi Name of relative of friend Self (9990476820) Date of examination ____ Date and hour of arrival 5/4/14 12: 35 pm No. and date of police docket PARTCIULARS OF INJURIES OR SYMPTOMS, IN CASE OF POISONING DDN-19A No. and name of Constable SI Ved Prakash, PS Jahangirpuri In Admitted{Date of admission __ Date of Discharge __ Thumb Impression Date and hour of report sent to police _______ B/B Self A/H/O Physical assault H/H/O __ seizures, vomiting, ____ O/E – Pt. Is ___ and ___ with T/P/P BP – 114/74 mmHg PR – 84/m RR – 16/m Temp. – afebrile L/E – Abrasion present over the lt. side of chest Adv.:- - Admt - Inj. TT (.ml) in stat. - Inj. Voveran /mp in stat - Inj Rantac /mp in stat - Tab. Voveran /BD - Tab. Ciplox /BD - Tab Rantac /BD Space for particulars as to further reference to the casedate of giving evidence in the Court or despatch of articles said to contain poison Name of injuries Simple The kind of weapon used or poison suspected in case of poisoning (Simple, Grievous or Dangerous) Identification Remarks 1) mole present at the Rt. side of neck

2) ________________________ Examining Medical Officer‖

11. He emphasises that the prosecution had neither recovered the weapon of offence nor made any public person a witness to the incident despite the fact that the incident had occurred on a busy road in broad daylight. Consequently, according to him, the credibility of the eyewitnesses in the present case is highly questionable, both due to their relationship with the deceased and due to the previous enmity with the appellant-convicts.

ARGUMENTS ON BEHALF OF LEARNED COUNSEL FOR APPELLANT-CONVICT SUNIL @ ANNU

12. Mr. S.S. Ahluwalia, learned counsel for appellant-convict Sunil @ Annu emphasises that there had been no seizure of bloodstained clothes from any of the appellant-convicts.

13. He contends that there are major discrepancies in the testimonies of Rakesh Kumar (PW-7) and Bharat Kumar (PW-16) with regard to the incident of 04th April, 2014. Consequently, according to him, the allegation that a threat had been meted out by the appellant-convicts to the deceased Mohan on 04th April, 2014 (a night prior to the murder) is a make-believe story.

14. He also submits that the trial Court has laid undue emphasis on motive of the crime, namely, the alleged threat on 4th April, 2014. According to him, howsoever strong the motive be, it cannot form the basis of conviction of an accused. In support of his submission, he relies upon a Division Bench judgment of this Court in Arun & Ors. vs. State, 209 (2014) DLT 515 (DB) wherein it has been held as under:- ―34. In the absence of seizure of the employment record, the same could not be verified. Whatever record/computer generated salary sheets were produced, the same do not support the prosecution version. Similarly, as per the prosecution version, appellant Arun Kumar himself stopped coming to work whereas appellant Rani was still serving. Thus, there could not be a motive strong enough for appellants Arun Kumar and Rani to have entered into any conspiracy to commit the gruesome crime as alleged. Otherwise also, it is very well settled that motive, however, strong is not enough to base conviction of the accused. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124 while referring to N.J. Suraj v. State, (2004) 11 SCC 346, Santosh Kumar Singh v. State, (2010) 9 SCC 747 and Rukia Begum v. State of Karnataka, (2011) 4 SCC 779, the Supreme Court observed that motive alone can hardly be a ground for conviction....‖ ARGUMENTS ON BEHALF OF LEARNED APP FOR STATE

15. Per contra, Mr. Rajat Katyal, learned APP for the State states that one of the PCR Forms mentions the mobile number of Bharat Kumar (PW-16) under the column of Informant‟s Phone number. He states that the said PCR Form contemporaneously records that the appellant-convicts Rohit and Sunil @ Annu had fought with the deceased Mohan and had run away. He further states that though the second PCR Form records Informant Seema‟s complaint saying, ―Bhai Jhagar Raha Hai‖, yet the same does not absolve the appellant-convicts in any manner.

16. Learned APP for the State points out that Rakesh Kumar (PW-7) in his testimony had clearly stated that he was treated simultaneously in the hospital at the time of admission of the deceased Mohan. He states that as the MLC of Rakesh Kumar (PW-7) records that he had suffered only a simple injury, his whole endeavour at the time of admission would have been to provide medical aid to deceased Mohan, who had suffered serious injuries.

17. He emphasises that the presence of Rakesh Kumar (PW-7) at the BJRM Hospital at the time of admission of the deceased Mohan has been confirmed by Constable Naresh Kumar (PW-15), ASI Brij Bhushan (PW- 20), SI Ved Prakash (PW-21) and Inspector Jai Prakash (PW-22).

18. He emphasises that Rakesh Kumar (PW-7), who is an eyewitness, had consistently maintained that the weapon of offence was a Sua/Ice Pick. He contends that his testimony had been corroborated by the post- mortem report and testimony of Dr. Bhim Singh, the doctor who conducted the post-mortem inasmuch as he had pointed out that the injuries on the deceased Mohan could have been caused by ―a pointed weapon like screw driver or like weapon‖.

19. Learned APP states that the appellant-convicts argument that the presence of Bharat Kumar (PW-16) at the scene of crime was highly doubtful as he was residing far away, is wrong and contrary to the record. He states that Bharat Kumar (PW-16) admittedly resides at G-1670, Jahangir Puri and the place of murder was nearby. He points out that Inspector Jai Prakash (PW-22) had deposed that the place of murder was at 1600 wali Gali in between House No.1647 and 1704/1705. He points out that Bharat Kumar (PW-16) had not deposed that he had seen the complete incident of murder. He emphasises that Bharat Kumar (PW-16) had described the events subsequent to the stabbing of the deceased Mohan.

20. He contends that the production of Jeans of deceased Mohan by Bharat Kumar (PW-16) before the police officials which had been found to have stains of „A‟ Blood Group fortifies his presence at the hospital. He points out that the shirt of the deceased Mohan which had been handed over by the post-mortem Doctor to the police officials was also found by FSL to have „A‟ Blood Group stains.

21. He contends that Bharat Kumar (PW-16) in his PCR call had mentioned the use of knife mistakenly as he was not an eyewitness and did not know about the exact weapon of offence. He refers to the testimony of Bharat Kumar (PW-16) wherein he had explained as to why he had initially mistakenly mentioned the use of knife as the weapon of offence.

22. Learned APP for the State states that efforts were made by the Investigating Officer to examine independent witnesses, but none came forward. In support of his contention, he relies upon the testimony of the Investigating Officer Inspector Jai Prakash (PW-22) wherein he had deposed as under:- ―.......I made efforts for recording the statement of public persons who found gathered at both the spots, but no such public witness agreed to make statement to me. The second spot was at 1600 Wali Gali in between H.No.1647 and 1704/1705. I had not recorded the statement of any person from the said houses. Voltd. I made efforts for recording their statements, I had also enquired their names and mentioned their names in the Inner Case Diary....‖

23. Learned APP emphasises that both Bharat Kumar (PW-16) and Rakesh Kumar (PW-7) have stood the test of cross-examination and nothing had come in their testimonies which discredits them. He contends that there are no contradictions or exaggerations in their statements and they have given complete details of the incident of murder and events subsequent thereto.

24. Mr. Katyal states that it is an admitted case that the deceased had died an unnatural death and it is not the case of the appellant-convicts that the deceased Mohan had been stabbed later at any point of time by someone else. He further states that as the MLC of the deceased Mohan shows that he was declared brought dead, the Doctor who conducted the MLC might not have fully examined the deceased and might have mentioned the apparent injuries only in the MLC. He points out that the appellant-convicts had failed to cross-examine Dr. Avnish Tripathi (PW-3), who had proved the MLC of the deceased Mohan, on this aspect.

25. Learned APP points out that with regard to recovery of broken pieces of bangles, the Investigating Officer, Inspector Jai Prakash (PW-22) had deposed as under:- ―During investigation, it was revealed to me that the broken bangle pieces, which were seized from the second spot, belonging to some lady who tried to intervene and separate the victim from the offenders. During investigation, I could not meet the said lady and accordingly, her statement could not be recorded. It is correct that the complainant had not disclosed about any lady who had intervened in the occurrence. It is correct that I had not made any enquiry from Rakesh as well as from Bharat, about the said lady.....‖

26. Learned APP further states that as in the present case two appellantconvicts had surrendered and were arrested on 11th April, 2014 and the third appellant-convict had been arrested on 09th May, 2014, neither the weapon of offence could be recovered nor the clothes worn by the appellant-convicts at the time of murder, could be recovered. He, however, submits that non-recovery of weapon of offence and clothes worn by the appellant-convicts does not give any benefit to appellantconvicts.

27. Mr. Rajat Katyal, learned APP lastly submits that the Apex Court has recently on similar facts in Ganapathi & Anr. Vs. State of Tamil Nadu, (2018) 5 SCC 549 held as under:- ―11. Having given our thoughtful consideration to the submissions made by the respective learned counsel, we have perused the material on record in the light of facts and circumstances of the case. There is no denial of the fact that the marriage between the deceased Murugan and accused— Muthulakshmi did not take place in a cordial atmosphere and there were strained relations between the couple and their families as well. About a month after her marriage, Accused No. 4 came out of her matrimonial home and due to that fact, the other accused persons (brothers of A-4) developed grudge against Murugan and his sister— Poomari, who was alleged to be the root cause of disturbances between the couple. Thus, the motive to commit the crime on the part of accused is quite clear inasmuch as on the previous day of occurrence also, the parties met at the police station and the accused had a heated discussion with the victims and laid a challenge to finish both Murugan and his sister Poomari.

12. The evidence of ocular witnesses, PWs 1 and 2, father and brother of the deceased, clearly exhibits the way in which the accused took away the life of deceased Murugan. Their evidence narrates the guilt of the accused beyond reasonable doubt and corroborates with that of the medical evidence. Dr. Danraj (PW12) who conducted the postmortem on the body of deceased Murugan, had pointed out as many as 10 cut injuries out of which injury Nos. 1, 2, 5, 6, 7, 8, 9 and 10 are fatal which were possible by sickle and capable of causing death whereas injury Nos. 7 and 9 were possible by knife. It appears that there were two independent witnesses (PWs 5 and 6) projected by the prosecution, but they have turned hostile. In several cases, only the family members are present at the time of incident, then the case of the prosecution will be based only on their evidence. When their evidence is the only evidence available, Courts should be cautious and meticulously evaluate the evidence in the process of trial and we are not able to appreciate the contention on behalf of the accused that the non-examination of independent witnesses and conviction based on the evidence of family members is fatal to the case of the prosecution.

13. ‗Related‘ is not equivalent to ‗interested‘. A witness may be called ‗interested‘ only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be ‗interested‘ [See: State of Rajasthan v. Smt. Kalki, (1981) 2 SCC 752].

14. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made [See: Maranadu v. State by Inspector of Police, Tamil Nadu, (2008) 16 SCC 529].‖ ARGUMENTS ON BEHALF OF LEARNED COUNSEL FOR VICTIM- COMPLAINANT

28. Mr. Kuber Giri, learned counsel for the victim-complainant states that no suggestion in respect of remains of the bangles had been put to Rakesh Kumar (PW-7) and Bharat Kumar (PW-16). He also draws this Court‟s attention to the deposition of Inspector Jai Prakash, IO (PW-22) wherein he had stated as under:- ―....I have already deposed above that during investigation it was revealed to me that the said pieces of bangle fell at the second place when one lady tried to intervene. During investigation, no evidence has surfaced to the effect that except the aforesaid fact, there was any other angle regarding the fall of the bangle pieces at the spot....‖

29. He further states that the appellant-convicts‟ contention that there are different versions with regard to weapon of offence is blatantly false. He states that Rakesh Kumar (PW-7) had stated that the weapon of offence was “Sua” seven times in his testimony. He submits that nondescription of the weapon of offence or non-recovery of the murder weapon is not fatal to the case of the prosecution. In support of his submission, he relies upon the following judgments:- A) Sanjeev Kumar Gupta Vs. State of Uttar Pradesh, (2015) 11 SCC 69 wherein it has been held as under:- ―22. The learned counsel appearing for appellant Saurabh took the following defences: that the common object was missing in respect of the present appellant; there was contradiction in the version stated by PW 1 in the FIR and in his deposition in the court; the credibility of PW 1 as an eyewitness is weakened by the medical version. Further there was no test identification parade conducted which was imperative as there were some members who were stated to be outsiders. PW 1 and PW 3 are not consistent in their depositions. In addition to the above, the evidence of the alleged crime does not connect with the appellant-accused as no weapon of offence was recovered by the police and the blood on the shirt of the deceased could not be ascertained.

31. We do note that the investigation suffers from certain flaws such as non-recovery of the weapon used by the appellant-accused and recovery of the bloodstained shirt after six days of the date of the incident. However, merely on the basis of these circumstances the entire case of the prosecution cannot be brushed aside when it has been proved by medical evidence corroborated by testimonies of the prosecution witnesses that the deceased died a homicidal death. This Court has held in Manjit Singh v. State of Punjab [Manjit Singh v. State of Punjab, (2013) 12 SCC 746: (2014) 4 SCC (Cri) 531], that when there is ample unimpeachable ocular evidence and the same has received corroboration from medical evidence, non-recovery of bloodstained clothes or even the murder weapon does not affect the prosecution case.‖ B) Anwarul Haq Vs. State of U.P., (2005) 10 SCC 581 wherein it has been held as under:- ―15. Eyewitnesses in the present case have described the knife, and merely because the knife has not been recovered during investigation same cannot be a factor to discard the evidence of PWs 1 and 2. Wounds noticed by the doctor (PW

3) also throw considerable light on this aspect. The doctor's opinion about the weapon, though theoretical, cannot be totally wiped out. In that view of the matter the appellant has been rightly convicted under Section 324 IPC.‖

30. Mr. Kuber Giri, learned counsel for the victim-complainant lastly states that antecedents of appellant-convicts Sunil @ Annu and Rohit are not clean as both of them have already been convicted in FIR NO. 643/2008 registered with Police Station Jahangir Puri under Sections 323/325/34 IPC.

31. At this stage, learned APP for State has handed over two charts indicating the involvement of appellant-convicts Sunil @ Annu and Rohit in different criminal cases. The said charts are reproduced hereinbelow:- A) Appellant- Convict Sunil @ Annu

┌─────────────────────────────────────────────────────────────────────────────────────────┐
│       Sl. FIR No. and          Under      Police       Judgement                        │
│       No. Date                 Section(s) Station                                       │
├─────────────────────────────────────────────────────────────────────────────────────────┤
│       1. 585/2007              160 IPC    Jahangir     Fine Rs. 100/- on                │
│           dt. 31/08/2007                  Puri.        22/09/2007.                      │
│       2.     318/2008          380 IPC      Jahangir             -                      │
│              dt.21/06/2008                  Puri                                        │
│       3.     31/2009           324/323/     Jahangir   Compounded on                    │
│              dt.18/01/2009     34 IPC       Puri       05/02/2013                       │
│       4.     643/2008          323/325/     Jahangir   Convicted on                     │
│              dt.17/12/2008     34 IPC       Puri       10/07/2017                       │
│ Crl.A.500/2019 & Ors.                                         Page 26 of 49             │
│                                                                      2019:DHC:3658-DB   │
│       5.     269/2014            302/307/   Jahangir   Convicted &                      │
│              dt. 05/04/2014      341/34     Puri       sentenced to life                │
│                                  IPC                   imprisonment on                  │
│                                                        27/03/2019.                      │
│ B) Appellant-convict Rohit                                                              │
│       Sl. FIR No. and            Under      Police     Judgement                        │
│       No. Date                   Sections   Station                                     │
│       1. FIR 643/2008            323/325/   Jahangir   Convicted on 10th                │
│           dated                  34 IPC     Puri.      July, 2017                       │
│           17/12/2008                                                                    │
│       2.     FIR 269/2014        302/307    Jahangir   Convicted and                    │
│              dated               /341/34    Puri       sentenced to life                │
│              05/04/2014          IPC                   imprisonment on                  │
│                                                        27th March, 2019                 │
│                               COURT‘S REASONING                                         │
└─────────────────────────────────────────────────────────────────────────────────────────┘

6. Confusion redish in colour, 4 cm x 3 cm over right side of forehead.

INTERNAL EXAMINATION

1. HEAD a) Scalp Tissues NAD b) Skull Bones c) Brain Matter Meninges & Cerebral Vessels: Pale d) Base of Skull

2. Neck: Soft Tissues a) Hyoid Bone b) Thyroid Cartilage Intact -NAD c) Cncoid Cartilage d) Tracheal Rings e) Tracheal Mucosa f) Any Foreign Body in Trachea/its Divisions

3. CHEST a) Bony Cage/Ribs b) Pleural Cavities c) Lungs d) Heart Shows through & through (Hole) in left – 4th intercostals space, enters into pleura, base of upper lobe, pericardium to left side base of ascending aerta, Pleural cavity and pericardial cavity full of blood about 02.[5] litres.

4. ABDOMEN & PELVIS A) Liver & Gallbladder b) Spleen c) Kidneys d) Pancreas e) Stomach: Contents- full of semi-digested food. Mucosa - NAD Abnormal Smell - NAD f) Bowels- Small -Large g) Urinary Bladder- ½ h) Rectum – ½ i) Gental organs – NAD j) Uterus

5. SPINAL COLUMN -- NAD OPINION:- Death was due to Haemorrhage shock, consequent upon stab injury to left lung and heart. All the injuries were ante mortem and fresh and injury no.01 to 04, could be caused by pointed weapon, like screwdriver or like weapon. Injury no.6 could be caused by blunt force impact. Injury no.2 is sufficient to cause death in ordinary cause of nature. Time since Death about – 24 hrs. Total Inquest Papers – 10 Ten. ARTICLES/SPECIMEN PRESERVED & HANDED OVER TO POLICE a) Clothes sealed b) Blood i.e. Gauge piece c) Scalp Hair d) Any other Specify Sd/- Dr. Bhim Singh M.D. (Forensic Medicine) Jr. Specialist, B.J.R.M. Hospital Govt. of NCT Delhi Signature Chief Medical Officer‖

49. Consequently, all the above factors go to establish that there was intent on the part of appellant-convicts to kill the deceased Mohan.

RAKESH KUMAR (PW-7) IN HIS TESTIMONY HAD DEPOSED WITH REGARD TO THE STAB INJURY ON THE CHEST. FURTHER, IT IS SETTLED LAW THAT NON-MENTIONING OF THE NAME OF THE ASSAILANT TO THE DOCTOR IS NOT FATAL TO CASE OF THE PROSECUTION.

50. The argument of the appellant-convicts that the theory of stab injury on the chest had been introduced for the first time by the post mortem report is contrary to facts. Rakesh Kumar (PW-7) in his testimony had deposed with regard to the stab injury on the chest as under:- ―…..Accused Annu present in the court today had given forceful blows of Sua meant for breaking ice on my bhanja Mohan and had given several blows to him and other accused Rohit and Shiv Kumar, all present in the court today, had caught hold Mohan and one of the blow was given on the chest near heart….‖

51. In fact, Rakesh Kumar (PW-7) and Dr. Avnish Tripathi (PW-3) have neither been cross examined, nor confronted on this point.

52. Further, it is settled law that non-mentioning of the name of the assailant to the doctor when the body of the deceased was taken to the hospital, is not fatal to case of the prosecution. The Supreme Court in Pattipati Venkaiah Vs. State of Andhra Pradesh, (1985) 4 SCC 80 has held as under:- ―17. Another argument advanced before us was that although PWs 1 and 2 were supposed to be eyewitnesses, they never cared to disclose the name of the assailant to the doctor when the body of the deceased was taken to the hospital. This argument is only stated to be rejected. A doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary effort is to save the life of the person brought to him and inform the police in medicolegal cases. In this state of confusion, PWs 1 and 2 may not have chosen to give details of the murder to the doctor. It is well settled that doctors before whom dead bodies are produced or injured persons are brought, either themselves take the dying declaration or hold the post-mortem immediately and if they start examining the informants they are likely to become witnesses of the occurrence which is not permissible.‖

53. This Court is also of the opinion that no prejudice has been caused to the appellant-convicts as a consequence of any alleged discrepancy between the MLC and the post mortem report of the deceased Mohan.

SECTION 34 IPC IS ATTRACTED TO THE PRESENT CASE

54. Despite appellant-convict Sunil @ Annu giving repeated ‗Sua blows‘ to the deceased Mohan, which were sufficient in ordinary course of nature to cause death, neither appellant-convict Rohit nor appellantconvict Shiv Kumar @ Shibu tried to protect the deceased Mohan. On the contrary, they caught hold of the deceased Mohan and ensured that he did not manage to escape. The Supreme Court in Suresh and Another Vs. State of U.P., (2001) 3 SCC 673 has held as under:- ―24. Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32 IPC. So the act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e.g. a coaccused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC.‖

55. Consequently, Section 34 IPC is attracted to the present case.

EVEN IF IT IS ASSUMED THAT THE INVESTIGATION HAS BEEN FAULTY, THE BENEFIT OF THE SAME CANNOT BE GIVEN TO THE ACCUSED.

56. Further, non recovery of the weapon of offence and clothes worn by the appellant-convicts as well as non-investigation of the second PCR caller or the broken bangles at the scene of crime are not fatal to the prosecution case as the present case is based on ocular evidence, which is corroborated by the medical evidence. In fact, this Court is of the view that the presence of broken bangles of ladies at the scene of crime has been explained by Rakesh Kumar (PW-7) in his deposition inasmuch as he has deposed that when the appellant-convicts fled from the scene of crime, their family members, namely four ladies, started beating the deceased Mohan.

57. Even if it is assumed that the investigation has been faulty, the benefit of the same cannot be given to the accused. The Supreme Court in Ram Bali Vs. State of U.P., (2004) 10 SCC 598 has held as under:- ―12. The investigation was also stated to be defective since the gun was not sent for forensic test. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. [(1995) 5 SCC 518: 1995 SCC (Cri) 977])

13. In Paras Yadav v. State of Bihar [(1999) 2 SCC 126: 1999 SCC (Cri) 104] it was held that if the lapse or omission is committed by the investigating agency or because of negligence there had been defective investigation the prosecution evidence is required to be examined dehors such omissions carefully to find out whether the said evidence is reliable or not and to what extent, such lapse affected the object of finding out the truth. The contaminated conduct of officials alone should not stand in the way of evaluating the evidence by the courts in finding out the truth, if the materials on record are otherwise credible and truthful; otherwise the designed mischief at the instance of biased or interested investigator would be perpetuated and justice would be denied to the complainant party, and in the process to the community at large.

14. As was observed in Ram Bihari Yadav v. State of Bihar [(1998) 4 SCC 517: 1998 SCC (Cri) 1085] if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the lawenforcing agency but also in the administration of justice. The view was again reiterated in Amar Singh v. Balwinder Singh [(2003) 2 SCC 518: 2003 SCC (Cri) 641]. As noted in Amar Singh case [(2003) 2 SCC 518: 2003 SCC (Cri) 641] it would have been certainly better if the firearms were sent to the Forensic Test Laboratory for comparison. But the report of the ballistic expert would merely be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eyewitnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the IO cannot affect the credibility of the prosecution version.‖ CONCLUSION

58. Keeping in view the aforesaid ocular and medical evidence, this Court is of the view that the appellant-convicts, being well aware of the movements of the deceased Mohan, executed a pre-planned murder in accordance with the threat meted out a night prior to the incident by appellant-convicts Rohit and Sunil @ Annu. Further, despite appellantconvict Sunil @ Annu giving repeated ‗Sua blows‘ to the deceased Mohan, which were sufficient in ordinary course of nature to cause death, neither appellant-convict Rohit nor appellant-convict Shiv Kumar @ Shibu tried to protect the deceased Mohan. On the contrary, they caught hold of the deceased Mohan and ensured that he did not manage to escape. Accordingly, present appeals being bereft of merits are dismissed and the conviction as well as sentence of appellant-convicts is upheld. A copy of the judgment be given to the appellant-convicts through the concerned Jail Superintendent. MANMOHAN, J SANGITA DHINGRA SEHGAL, J JULY 26, 2019 rn/js